Privacy law and the dead – a reappraisal

Privacy is regarded as a fundamental right that is protected in multiple and varying ways. This cannot be said for privacy of the dead. Post-mortem privacy is increasingly becoming a vital topic of public and scholarly legal concern. This is the first of a two-part set of articles that examines whether, and to what extent post-mortem privacy is or can be protected under the law of England and Wales, through the common law, data protection, copyright and Article 8 of the European Convention on Human Rights. This article considers the importance of post-mortem privacy and reviews the law of privacy and post-mortem privacy in England and Wales including under the ECHR. It also considers medical confidentiality and whether common arguments that pertain to the dead (e.g. organ donation, burial, testamentary dispositions and posthumous copyright) lend support to post-mortem privacy arguments. This article introduces the concept of post-mortem privacy as envisioned by Harbinja and Edwards, and discusses whether the dead can be legal rights holders with a focus on the Interest Theory of rights. This allows for the discussion of post-mortem theories and harm. It concludes by supplementing Donnelly and McDonagh’s theories on ante-mortem anxiety and Davey’s theory on chilling effects with the jurisprudence of the ECHR to create a new legal right.